Autumn Symposium Rakes Over Copyright and Patent Law


Andy Oram
November 10, 2005

The organizers of this week’s Symposium on Intellectual Property, Creativity, and the Innovation Process must possess extraordinary confidence in their mastery of the kind of intellectual crowd control required to manage the range of people they invited to the conference, from computer hackers shouting “Let me be free!” to businesspeople asking, “How can I find a revenue model in the new technologies and media?” alongside artists asking, “How can I find a revenue model in the new technologies and media?” (yes, artists are just businesspeople with funny haircuts), librarians claiming, “Whatever emerges, we want a part of it,” and a bevy of lawyers wondering, “How do all the doctrines I learned in law school—or (more urgently) teach in law school—hold up in the path of the current technological and social onslaught?”

Well, they managed it, and the two days in Chapel Hill, North Carolina were widely acknowledged to be productive and eye-opening. One can’t help but see things one hasn’t seen before in a conference that attracts Marybeth Peters—Register of Copyrights, who has been heading the U.S. Copyright Office since 1994, a critical period of change—as well as a counsel for intellectual property at the U.S. Patent Office, IP law critic James Boyle, open-source advocate Chris DiBona, EFF representative and science-fiction author Cory Doctorow, several managers from Red Hat, a panelist from Microsoft, lawyers from Canada (who somehow care what goes on in the rogue nation to their south), and various journalists and academics to act as witnesses. All in all, about a hundred people, half of them local, attended.

The glow of this conference lingers on in the shape of a new center that has just been announced by the law school at the University of North Carolina at Chapel Hill, a conference sponsor. Conference organizer David Harrison says of the center that “Leading researchers and practitioners in all areas that depend upon innovation and creativity will work together to achieve real change through practical applications. The Center is intended to provide applied solutions to preserving and promoting the creative incentives necessary for social, cultural, and economic growth.” My hope is it will lead to more conferences of this nature and ultimately new policy.

Digital Rights Management—the unmasking of a scam

Several years ago, when Congress passed a law requiring content filters in schools and libraries that receive federal funds, I wrote a high-handed article calling such filters a scam. I found reasons to excoriate Congress, even on purely technical grounds, for requiring filters’ use. Paying money for something that doesn’t work (even to fulfill its own questionable goals) just drags down the economic foundations of an organization.

Much the same could be said for Digital Rights Management, which has not been required by law (yet) but seems to win adherents in a similar manner through fear. The goal of DRM is to let someone make limited uses of some content (for instance, viewing it on approved devices) while cutting off other uses. There are many forms of DRM, ranging from simply encrypting content (as satellite TV does) to embedding sophisticated watermarks or other identifying information in a work—and sometimes embedding information about the purchaser, which can lead to privacy violations.

Most of us can report a story where poorly coded software rendered some product or content unusable. Even when it works the way the manufacturer intended it, DRM keeps people from doing quite reasonable things such as taking a document home from work or to a class. Cory Doctorow virtuosically skewered DRM at the conference, explaining how it cuts off both current benefits and potential opportunities. He pointed out that DVDs haven’t included any substantial new features since their first introduction 10 years ago (think, by contrast, how much the Web has changed in 10 years), and blamed this stagnation on the control that the studios exert over the making of DVD players.

Even Edward Klaris, in a lovely demonstration of the new DVD collection called The Complete New Yorker, admitted that its embedded DRM would not stop determined crackers. He said simply that this DRM would put barriers in the way of normal users making copies, which seemed, oddly enough, to be its goal. There is nothing new about DRM hampering honest users while failing to offer protection against real abuse. Klaris is to be commended for admitting it. And The Complete New Yorker is, to be sure, a beautiful production well worth the money (which comes out to about four cents per issue). I’m just worried that something will go wrong with its software and cripple its use, as happened to me several years ago with the National Geographic on CD.

Copyright—both better and worse off than you think

In a pattern repeated over the course of the symposium, assessments of copyright law alternated between the more conservative attendees who thought it “basically works” or “can be made to work” and doom-sayers who warned that youth were coming to see the copyright system as irrelevant and illegitimate. As so often happens, I believe the truth lies at both extremes. And no one voiced the opinion that copyright was adequate to current trends, or even that it’s moving in the right direction. The recent Sonny Bono Copyright Term Extension Act (upheld by the Supreme Court in Eldred v. Ashcroft) was criticized by everyone, including the Register of Copyrights, Marybeth Peters.

Peters, while retreating cautiously in face of certain questions, offered several intriguing opinions. For instance, when asked whether copyright law could soften to let musicians do sampling and remixing, she averred that there should be an easy way to use chunks of other people’s material that are “larger than trivial” (i.e., too big to qualify for a fair use exemption) but not major parts of the original.

Peters expressed anxiety about rules for licensing music on the Internet, saying that both she and Congress had failed to get the different sides to come to consensus. Those holding the licenses want every single broadcast to be noted and paid for, which Peters called at absurdity. She declared that her concern is for making sure the “creative genius” is rewarded, and has little interest in intermediaries such as publishers and trade associations. To those who have followed the laws and court rulings, this statement implicitly criticizes a system where the intermediaries hold most of the power and drive most of the agenda.

My meetings filled in some minor aspects of Google Print, which combines the old-fashioned notion of archiving old material (which libraries have always done to preserve it) and of applying to print books the indexing and searching technologies for which Google has become famous. I support Google Print, but I did hear suggestions at the symposium that Google has not handled the communications and publicity around it as well as it should, and that this might have made the publishers’ and agents’ reactions worse than necessary.

First, Google kept its negotiations with libraries mostly secret until it was ready to announce the project as a fait accompli. I don’t know why they did this, but it might have been because they didn’t want to divulge information to their competitors. A noncommercial site doing the project might have been more forthcoming and have been able to negotiate a compromise before the project reached this stage. The lawyers I talked to about the project (who supported Google, by the way) also said the libraries probably didn’t consider the copyright issues when signing up.

Second, a lawyer for a publisher who is suing Google said he thought they were being cagey with publishers. They were negotiating the Google Print for publishers program (which the publishers approve of) at the same time as they negotiated the controversial program with libraries. They did not tell the publishers about the library program. Then they announced the two programs simultaneously, leading to a confusing situation—the publisher program had been worked out with the full cooperation with the publishers, whereas the library program was a surprise and generated deep opposition among publishers.

Patents—little to celebrate

Now I’ve warmed up by discussing the problems with modern copyright, so that I can really let loose thunderbolts on the issue of patents. This issue intruded into nearly every forum at the symposium. No one in my hearing had a kind word for business patents, which Mark Webbink, Deputy General Counsel at Red Hat, said “puts us out of touch with the rest of the world.” (Webbink writes about patents for Linux Magazine from time to time.) But the news from the rest of the field is bad too. Even defenders of software patents admitted the system was out of control. Universities are starting to patent fundamental research, which had always been part of the canon of public goods open to all researchers.

One doctrine circulating among patent experts is that of “rational ignorance,” which one panelist expounded as, “it’s rational to do a poor job approving patents because most patents don’t matter.” Somehow, if this opinion holds, somebody has to learn to identify the “few patents that do matter” before the burden falls on the poor innovators who gets sued over them. This becomes a problem particularly because the Supreme Court, which used to reject all patent cases, now hears them regularly, and not being experts on patent law, “they screw it up in some cases” (an exact quote from this same panelist).

Beth Noveck, director of the Institute for Information Law and Policy at New York Law School, proposes that all patents go through a period of public scrutiny before being approved. “The proposal is to replace the patent examiner with a network of mutually self-rating peer review experts,” she writes. This proposal seems to many of us to be a marvelous idea, a satisfyingly Cluetrain Manifesto way of involving people who have a stake in a knowledge domain. It will offer chances for anyone with interest and knowledge in the patent’s area to bring prior art or other problems to light.

Software patents will not go away, even though opponents have had extraordinary success holding off official approval of software patents in the European Union. In addition to court rulings that ensconce them more and more firmly in the United States patent system, it’s hard to draw a line separating software from other processes.

Open information and open source

Rina Pantalony, a counsel for the Library and Archives of Canada, pointed out in a session I attended about the public domain that the most frequent users of Brewster Kahle’s Internet Archive are trademark holders. Through the archive, they can find infringing uses. Pantalony used this fact to illustrate the value of open information.

In general, there was much hand-wringing at the symposium over the state of open information and the public domain, and many comparisons to the civil rights movement, concerning the scale and nobility of the tasks that face defenders. But it’s hard to fashion a campaign around the highly abstract notion of preserving the public domain—particularly in a country seen by so many as “an ownership society”—when there are so many other pernicious closures around us: governments refusing to release data, information disappearing through cost-cutting or obsolete storage mechanisms, mainstream news blackouts, and so on.

Fair use is in worse shape than a review of court cases would make it seem, because institutions are afraid of depending on fair use to defend ordinary citation. For instance, many university presses require authors to get approval for every quote, even a single sentence—something that clearly falls under the purview of fair use. Documentary film-makers also fear being trapped by the inadvertent filming of protected works, even though court cases have granted the film-makers a lot of leeway.

We must be proud and protective of fair use in the United States, the only country that has established such a doctrine. Other countries have similar policies under the name “fair dealing,” but they are merely customs rather than legal doctrine. Canada, which used to have very restrictive copyright practices, recently made what Pantalony called “a 180 degree turn” and is now very open, but this can be attributed to judicial reinterpretations rather than new laws.

Big changes in U.S. law—such as reversing the recent copyright extension—are off the table for some time to come, but small improvements can make a difference. For instance, copyright owners should be required to register copyrights, as they did before the 1976 Copyright Act. This would create a database that potential users could search, just as there now exists a patent database.

At a conference sponsored by Red Hat and attended by many free software leaders, one could expect open source to crop up regularly. In fact, its success could be one of the few things we had cause to celebrate at the conference, but attendees tended to worry over the threat to open source posed by patents.

Just as we have to learn to live in a patent world, we have to realize that open source is part of a closed license world. That is why, even though GNU/Linux can furnish an excellent consumer desktop, completely free distributions such as Debian and Fedora are not for average users. This is because they shun anything with a whiff of a commercial license, which rules out such basic software as MP3 players, access to Windows-formatted disks, and most wireless card drivers. You either have to upgrade your system yourself (a demanding system administration job) or buy a commercial version.

End-user license agreements came up during the conference because they are a necessary prop to technical controls. And in this area occurred one of the few victories for the public interest in recent years, in the areas discussed by the conference. An appalling extension of corporate rights at the expense of customer rights—promulgated under the name UCITA and then UCC 2B—was haggled and pushed throughout the 1990s by a group of corporate interests, but ending up being adopted by only two states, one with serious restrictions, and essentially falling dormant.

The big view

The very term “intellectual property” is subject to a ban by Richard Stallman and like-minded thinkers who, guided by the history of ideas, seek to influence debate through language itself and the metaphors it embodies. But given that the term is ineradicable by now, a parsing of “intellectual property” can guide the new center at UNC toward a research agenda.

The two words “intellectual” and “property” suggest that the field needs examination by at least two different disciplines. The “intellectual” side calls for psychologists and others who study the generation of ideas. The “property” side would bring in economists, who can explain how incentives and restrictions affect the growth and use of of ideas.

Only after the psychologists and the economists have their say should the center involve lawyers, who currently dominate the discussion. By this logic, laypersons like me should be pushed to the sidelines altogether, but we can always make an argument for participation on the grounds of promoting civil society.

This article ends where the conference began, with Professor James Boyle’s biting talk about the state of intellectual property regimes. Billing his keynote as “ways to ruin a technological revolution,” he regaled us with the ideologies and practices wielded by the guardians of current business models to prevent the emergence of alternatives.

These practices include frightening policy-makers with the downside of every change (while ignoring its positive aspects), making policy in international bodies far away from representatives of civil society and independent producers, trying to substitute closed protocols and platforms for the open ones that created the Internet revolution, and creating legal standards around the elements of the regime that IP interests like (such as length of copyright) while stripping away legal protection for elements they don’t like (fair use). Conceptually, the old guard has managed to keep actual facts—such as comparisons of economic performance under different regimes—out of the discussion, and have insisted that debate concern only their business needs with no consideration of the general public.

Technologists, artists, and the public have a lot more work to do on these issues. Thanks go to Matthew Szulick of Red Hat, David Harrison of UNC, and Paul Jones of the ibiblio information site , for thinking up and pulling off this conference. A number of local law firms were also sponsors.

Detritus Carolingus

My visit to Chapel Hill, North Carolina had great timing. I arrived in the middle of the Halloween party, which drew crowds estimated from 70,000 to 100,000. There were enough folks in cool costumes to keep me interested for some time, although in the case of some young people, what they weren’t wearing was more interesting than what they were wearing.

The University of North Carolina also happens to be hosting a tour of Jack Kerouac’s famous On the Road manuscript, typed in a creative fury on paper taped end-to-end in long rolls to avert any need for him to interrupt the Muse…The scroll as it now appears under glass is a miracle of Kerouac magic, still alive for us after all this time. I can vouch that the book sprang from inspiration: his pen and pencil mark-up was relatively sparse. I was so inspired I thought of creating this entire article in the same manner, but I decided against that…In this way intellectual progress occurs in fits and starts, through sharing and imitation.

Andy Oram,, is an editor at O’Reilly Media. This article represents his views only.

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